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Power of the Pardon: After Clemency and Court-Martial Appeals

For the veteran convicted at court-martial, after clemency requests are made (and most often denied) and all military court-martial appeals have run, the last possible recourse to restore one’s voting rights, gun ownership rights, and to address citizenship and deportation concerns, is to apply for Presidential pardon.

HISTORIAL BACKGROUND

Presidential pardons have been viewed with a great deal of skepticism in the wake of some high profile cases, e.g. Ford’s pardon of Nixon, Clinton’s pardon of his half-brother and a wealthy donor, and George W. Bush commuting “Scooter” Libby for perjury and leaking the name of a CIA agent. Nonetheless, when used appropriately, the pardon is not a mere “get out of jail free” card” for political cronies, but a highly effective tool of governance and policy for the executive branch to counterbalance the sometimes absurd operation of law and to bring important issues to the forefront of our national consciousness.

In days gone by, the pardon was exercised more liberally. Presidents FDR and Truman issued over 2,000 pardons each, and Lincoln used the power so frequently that his attorney general said he should never have been entrusted with the tool because “he was too susceptible to women’s tears.” In the modern era, Presidents and Governors alike have been much more frugal about expending political capital in this manner. During the Reagan era, the electorate began to swing in favor of candidates perceived as “tough on crime” and the aforementioned political pardons eroded public confidence.

It’s noteworthy that the perception problem does not seem to track so closely with the number of pardons granted, but its haphazard and seemingly arbitrary or suspicious employment. Those who favor expanded use of the pardon urge caution and that it should be exercised in a principled and consistent manner as part of a deliberate campaign by the executive with a clearly messaged policy goal. Historical examples include Thomas Jefferson’s pardon of those imprisoned under the Alien and Sedition Act, which he considered both unconstitutional and morally reprehensible. Woodrow Wilson used the power to oppose Prohibition, pardoning some 500 individuals convicted under liquor laws. Most recently, Kennedy and Johnson commuted sentences of some 200 low-level drug offenders in an effort to draw attention to disproportionate and racially biased impacts of U.S. drug policy and mandatory minimum sentences. The most prominent example of principled use in recent memory is Illinois Governor George Ryan’s commutation of all 167 inmates on death row.

BEYOND POLITICS

In addition to a political tool, the pardon is also an implement of mercy, which finds less objectionable application when used to restore full citizenship rights (e.g. voting and ownership of firearms) to former convicts who have already served out their sentences. Living and working with a felony conviction has grown increasingly difficult, and for those tried and convicted in federal (e.g. military) courts, it is the last remaining option once all other avenues for clemency have been exhausted. In light of the controversy, it is no surprise that most exercises of pardon power come at the twilight of a political career, often a matter of days before an executive leaves office. Consequently, as President Obama prepares to depart the White House, the iron is – if not hot, at least warmer at this particular political juncture.